112 U.S.

600
5 S.Ct. 312
28 L.Ed. 851

MATTHEWS
v.
WARNER and another.
December 22, 1884.

W. A. Abbott, for appellant.

C. R. Hoar and Jos. B. Warner, for appellees.
MILLER, J.

This is an appeal from the circuit court for the district of Massachusetts,
dismissing the bill of appellant, who was plaintiff below. The bill alleges that
the plaintiff is the owner of 150 bonds of $1,000 each of the Memphis & Little
Rock Railroad Company, and 50 similar bonds of the South Carolina Central
Railroad Company, which have wrongfully come to the possession of
defendants; that these bonds are negotiable by delivery, and that defendants are
about to sell them at public auction, or otherwise, and she prays an injunction to
prevent this sale and for other equitable relief. Defendants deny any ownership
or interest of plaintiff in the bonds, and allege that they are holders of them for
a valuable consideration, and set out the transaction by which they obtained the
bonds. This answer raises several questions which we do not think necessary to
consider, and a large volume of testimony is found in the case which, for the
same reason, we do not propose to review here.

The defendants are trustees under an assignment made by Thomas Upham for
the benefit of his creditors. There passed to them by the assignment a bond for
$250,000, made by Edward Matthews, the husband of plaintiff, and a mortgage
on valuable real estate in the city of New York, to secure it. These were made
payable to Nathan Matthews, brother of Edward, and by him assigned to
Upham as security for a loan or loans made by Upham to Nathan Matthews. It
seems to be clear that this assignment was made by the consent of Edward, or
by his directions. This was in May, 1875. Some time prior to March, 1877,
Edward Matthews, who had become embarrassed, desired to take up this

mortgage, and entered into negotiations for that purpose with defendants, who
agreed to an exchange of the bond and mortgage for the railroad bonds which
are the subject of this suit. They accordingly sent Joseph B. Warner, their legal
adviser, from Boston, where they resided, with the bond and mortgage, and the
exchange was made by him as their agent, receiving the bonds in question at
Mr. Matthews' office in the city of New York. This exchange took place on the
sixth day of March, 1877. It appears that the 150 Memphis & Little Rock
Company bonds were on that day, and had been for some time previous, in
possession of Morton, Bliss & Co., bankers, as collateral security for the debt
of Edward Matthews, who had placed them there. From the very vague and
unsatisfactory testimony of Mr. Brander Matthews, son of plaintiff, and of her
husband, Edward Matthews, it appears that at some time prior to the date of this
transaction, but whether a month or a year he cannot say, Brander Matthews
went with his mother to the office of the Safe Deposit Company, and secured a
box for his mother's use, of which she took one key and he another. On this
sixth day of March, without consulting his mother, he went to this box and took
out 200 bonds of the South Carolina Central Railroad Company, and, going
from thence to the office of Morton, Bliss & Co., he exchanged 150 of these
bonds for the Memphis & Little Rock Company's bonds, and brought them,
with the remaining 50 bonds of the South Carolina Company, to his father's
office, and in his presence delivered them to Mr. Warner. An instrument in
writing was here drawn up, showing the terms of the exchange and the purpose
for which the bonds were pledged. This instrument is signed Caleb H. Warner
and Charles F. Smith, by Joseph B. Warner, their attorney; Nathan Matthews,
by W. H. Williams, his attorney, and by Edward Matthews.
3

Mr. Brander Matthews testifies that he had no authority from his mother for the
use he made of the bonds, nor does he believe she knew anything about it. Mr.
Edward Matthews supports him in this. It is, however, apparent that in regard to
these bonds, and to others placed in the box and removed from it from time to
time, that the mother was rarely, if ever, consulted. Mr. Edward Matthews
testifies that these bonds had at one time been his bonds, and he says they
became his wife's property by virtue of assignments which he had made of
them to Watson Matthews, his brother, in trust for Mrs. Matthews. Two papers
are produced which purport to assign to Watson Matthews the equity of
redemption and right and interest of Edward Matthews to a large list of bonds
and other securities held by parties to whom Edward Matthews had pledged
them for his own debts. One of them is dated April 22, 1876, and the other
May 13, 1876. There is no satisfactory evidence of the delivery of either of
these papers to Mrs. Matthews or to Watson Matthews. Edward Matthews says
they were placed with other papers in Mrs. Matthews' box in the safe deposit
vault. There is no evidence that Mrs. Matthews ever had either of these papers,

or any of the bonds described in them, in her manual possession. No evidence

that she ever went to the box or opened it herself to put anything in it or take
anything out. The instruments speak of the assignments as security for a debt
owing by Edward Matthews to his wife. No evidence is given of the origin of
this debt; nor that Mrs. Matthews ever had any separate estate of her own, or
anything to loan her husband. They must have been married a long time, as
Brander Matthews, the son, was over 23 years old at the time of these
transactions.
4

It also appears that Watson Matthews was the brother of Edward Matthews,
and both he and Brander Matthews occupied as offices the same rooms in
which Edward Matthews did business. It is significant, also, that the bill in this
case is sworn to by one of the solicitors on his behalf, and her name is signed
by them and not by herself. The only act which she is ever said to have done or
performed in person, asserting a claim to these bonds, is a notice to which her
name is appended, to the defendants, some six months after the exchange of the
bond and mortgage for the railroad bonds, in which she says they are her bonds,
and forbids them to sell them. A witness, the clerk of Matthews, says the
signature, he thinks, was written by Mr. Matthews; and it is admitted that the
letter was dictated by him and written in his office. The plaintiff, who, if she
had any just claim to these bonds, could best have explained how that claim
originated, who could have told what money or property she loaned her
husband, or how he became her debtor, is not sworn as a witness in the case. It
looks very much to us as if the box at the safe deposit vault, with a key in the
possession of the son, who occupied the same office with the father, and in the
light of other evidence in the case, was a contrivance by which the husband
could use the bonds as his own when he desired, and assert them to be the
property of the wife when that was more desirable. We are of opinion that
plaintiff never had any real ownership or actual control, or any lawful right, to
the bonds in suit. The decree of the circuit court dismissing the bill is affirmed
for this reason, without examining other grounds of defense to the suit.